Algae problems in the Shenandoah River may bring suit by Riverkeeper

Notice of intent to sue follows years of requests by Riverkeeper

The Shenandoah Riverkeeper has filed notice of intent to sue the EPA for failure to address problems caused by algae in the Shenandoah River.

The Riverkeeper's letter came at the same time as news reports about Toledo, Ohio having to shut off its water system due to pollution from an algae-like bacteria caught the national attention.

The riverkeeper’s potential suit would follow several years of work by the organization to encourage the Commonwealth of Virginia -- and the EPA -- to designate the river as impaired due to excessive algae. Impairment, in the context of the Clean Water Act, means that the waterbody is unable to meet one or more designated uses, such as being safe for swimming or fishing or as a supply for drinking water. The riverkeeper petitioned Virginia's Department of Environmental Quality to list the Shenandoah as impaired for recreational uses in the 2012 Integrated Report.

“Slimy green growths of algae,” in the Shenandoah River has, according the riverkeeper, caused bad odors, interfered with swimming, fishing, paddling and boating, and contributed to a decline in the health of fish and aquatic ecosystems in the river.

While algae are a natural component of fresh and saltwater aquatic systems, excessive nutrients in a waterway can result in algae blooms, which can clog waterways and change the ecosystem dynamics.

When the algae die, oxygen used in their natural decomposition is depleted in the water column, resulting in “dead zones,” such as those found in the Chesapeake Bay, Gulf of Mexico and other contained water bodies. The Shenandoah Riverkeeper – along with the Chesapeake Bay Foundation and others– points to excessive nutrients from agricultural runoff as the main cause of excessive algae.

Toledo's problems were caused by a bacteria called cyanobacteria that is aquatic and photosynthesizes. It produces toxins that water treatment plants cannot eliminate. “Harmful algae blooms” (or HABs) may refer to excessive algae or to growth of a species of cyanobacteria that can produce toxins that are harmful to humans and wildlife. These cyanobacteria – also called blue-green algae – may occur in conjunction with algae, such as the filamentous kind found in the Shenandoah River, and that result from excessive nutrients.

Since 2010, the Shenandoah Riverkeeper has requested that Virginia and the EPA list the Shenandoah as impaired for recreational uses, and continues to conduct surveys and studies to better understand the problem. "We've already documented a blue-green algae in the river," Kelble said, "but we think this is primarily an issue of recreational use."

However, in a December 12, 2013, EPA letter accepting Virginia’s 2012 impaired waters report, Jon Capacasa, head of the EPA Region III Water Protection Division, deferred final action on whether the Shenandoah River should be listed as impaired for recreation due to excessive algae. The letter also stated that it is supporting a one-year study being undertaken by the Interstate Potomac River Basin Commission on algae in the entire river basin, though the agency stopped short of saying that it would consider listing the river based on results from that study, which will be available in 2015.

What would happen, Kelble said, if "you went to your favorite beach and it was covered with algae, and you tried to swim in it, and it was nasty, but you tried anyway? If it keeps happening year after year, pretty soon you're going to stop going." Keble said his group wants the same attention -- and resources for fixing the problem -- to be spent on the rivers that flow into the Bay, not just the tidal portions. River segments that are listed as impaired are eligible for funding for studies to determine the causes of impairment and for actions to help reduce the pollution sources.

Citizens may sue the EPA if they feel that the agency has failed to perform an act or duty required by statute. A notice of intent to sue in advance of filing of the lawsuit is required in many such cases. According to EPA website, “Not all such notices result in lawsuits being filed.” The Shenandoah Riverkeeper is being represented by EarthJustice, an environmental law group based in Washington, DC.